If You Give Something Twice, Was it Really a “Gift” in the First Place?

by familyllb on September 11, 2014

If You Give Something Twice, Was it Really a “Gift” in the First Place?

In a recent Ontario property-division case called Nadendla v. Nadendla, the court grappled with whether to believe a husband’s testimony pertaining to an apartment in India allegedly he bought for his mother.

The couple married in 1993, had two children, and separated in 2011. As part of their subsequent divorce litigation, the husband testified that in 2007 after his father’s death he and his brother decided to purchase a $70,000 three-bedroom apartment in India for their mother. He claimed that at the time of purchase it was always intended by them to be the mother’s home upon completion, and provided details to the court about the alleged payment arrangements.

The wife, in contrast, claimed that it was not bought for the husband’s mother at all; rather, she understood it was merely bought as a real estate investment to be used when the couple went to India on family trips. (And this did take place on one occasion, and the husband’s mother was not there at the time). The wife said she was aware of family finances, and that the husband’s after-the-fact claim to the contrary was merely his attempt to keep the apartment out of the family property division process upon the couple’s subsequent separation and divorce.

The court looked at the evidence, and despite the husband’s assertions to the contrary found that he was actually the 100% owner of the apartment. The court noted certain evidentiary inconsistencies, such as the fact that: 1) on certain travel documents and a settlement deed the mother’s address was listed as the family home, not the apartment; and 2) there was no corroborating evidence that the husband’s brother invested any money as claimed. The court also noted that the husband had first claimed he gifted his share of the property to the mother in 2012, but this contradicted earlier testimony that he had given her a cash gift in 2008 and bought the apartment himself.

But most tellingly, the court pointed out that the husband’s claim to have transferred the apartment in 2012 (allegedly to placate certain people in India who had questioned his mother’s legal right to it) would not have been necessary if he had made an outright gift to her in 2008. In other words, if the husband bought his mother the apartment as a gift in 2008, then it was not his to give her a second time in 2012.

In short, the court rejected the husband’s evidence on the apartment in India, and concluded that the wife was a more credible and reliable witness. It accordingly made a factual finding that the couple’s funds were used to buy the apartment in India, in the name of husband, as a real estate investment. The apartment was therefore to be included in the Net Family Property division and equalization process in the normal course.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

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FamilyLLB is written by Russell Alexander, a divorce and family law lawyer based in Ontario, Canada. For nearly twenty years, Russell's firm has helped clients who are going through a separation or divorce. You can find more of Russell's online commentary via Twitter, Google+, LinkedIn, or on the firm's Facebook page.